LFD Homes Pty Ltd ATF the LFD Homes Unit Trust v The Council of the City of Sydney

[2025] NSWLEC 1235

Land and Environment Court

New South Wales

Medium Neutral Citation:

LFD Homes Pty Ltd ATF The LFD Homes Unit Trust v The Council of the City of Sydney [2025] NSWLEC 1235

Hearing dates:

21 February 2025

Date of orders:

11 April 2025

Decision date:

11 April 2025

Jurisdiction:

Class 1

Before:

Senior Deputy Registrar Holm

Decision:

The Court orders that:

(1) Leave is granted for the Respondent to amend the Notice of Motion filed 11 December 2024 to refer to the Notice to Produce filed 21 February 2025.

(2) The Notice of Motion filed 11 December 2024 (as amended) is refused.

(3) The Respondent is directed to produce the documents in the Notice to Produce filed 21 February 2025.

(4) Costs are reserved.

Catchwords:

PRACTICE AND PROCEDURE – Notice of Motion to set aside a Notice to Produce – Apparent relevance – Legitimate forensic purpose – Notice of motion dismissed – Access granted

Legislation Cited:

Land and Environment Court Act 1979, s 38

Land and Environment Court Rules 2007, r 3.7

State Environmental Planning Policy (Housing) 2021, s 47

Uniform Civil Procedure Rules 2005, r 34.2

Cases Cited:

Secretary of theDepartment of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145

Category:

Procedural rulings

Parties:

LFD Homes Pty Ltd ATF The LFD Homes Unit Trust (Applicant) (Respondent on the Notice of Motion)
The Council of the City of Sydney (Respondent) (Applicant on the Notice of Motion)

Representation:

Counsel:
M Harker (Counsel) (Applicant) (Respondent on the Notice of Motion)
P Canning (Solicitor) (Respondent) (Applicant on the Notice of Motion)

Solicitors:
Mills Oakley (Applicant) (Respondent on the Notice of Motion)
Council of the City of Sydney (Respondent) (Applicant on the Notice of Motion)

File Number(s):

2023/428688

Publication restriction:

Nil

JUDGMENT

1. The Applicant in the proceedings, by Notice to Produce filed in Court on 21 February 2025, seeks that the Respondent (Council) produce the following four categories of documents:

“1. In relation to the City of Sydney Council meeting held on 28 October 2024 and the published minutes of same, information raised within Item 11.2 (Protecting Traditional Boarding Houses):

a. Any correspondence between the City of Sydney Council and the following third parties as referenced at Item 11.2(A) and (E):

i. a copy of correspondence between Council and the 'community, Minister for Housing, Member for Sydney and Homes NSW to support resident through the court case, threat of eviction and possible relocations'

b. Records for the 2023/2024 financial year for the City of Sydney's Affordable and Diverse Housing Fund, as referenced at Item 11.2(B) and (G), including:

i. the amount in the Fund at the end of that financial year;

ii. end of year financial reports showing the payment of money out of the Fund during that financial year;

iii. records referring to any proposed or committed use of the Fund to assist current residents of 58-60 and 62-64 Selwyn Street relocate; and

iv. A list of the addresses of available short and long term accommodation supported by the City of Sydney's Affordable and Diverse Housing Fund for the financial year.

c. A list for the 2023/2024 financial year of boarding houses within Council's local government area subject to Council's "boarding house inspection program" as referenced at Item 11.2(D).

3. In relation to the below quote from the article published in the Daily Telegraph 'Bradfield Oration: Sydney can learn from Singapore. Hong Kong housing plans' published on 12 November 2024. records showing the address and description of the development and (if available) the expected date of completion of the projects which have been provided the "$31.6 million in discounted land". where those projects involve the provision of affordable housing.

“As at the end of June 2024 we have collected more than $400 million in levies provided $31.6 million in discounted land and committed more than $13 million in grants.”

4. In relation to the quote below from the article published in the Daily Telegraph 'Bradfield Oration: Sydney can learn from Singapore. Hong Kong housing plans' published on 12 November 2024, records showing the address and description of the development and (if available) the expected date of completion of the projects which have been provided the "$13 million in grants", where those projects involve the provision of affordable housing.

"As at the end of June 2024 we have collected more than $400 million in levies, provided 31.6 million in discounted land and committed more than $13 million in grants.””

2. These proceedings are a Class 1 appeal against the refusal of a development application to convert an existing 32-bedroom boarding house into four attached dwellings in Paddington.

3. Council filed a Notice of Motion on 11 December 2024 seeking to set aside the Notice to Produce dated 26 November 2024. The parties by negotiation narrowed the scope of the Notice to Produce and the amended form of Notice to Produce was handed up in Court at the hearing of the motion. The parties agreed for the motion to be determined on the amended Notice to Produce filed 21 February 2025 and made oral submissions at the hearing.

4. I have determined to dismiss Council’s motion and direct Council to produce the documents, for the reasons that follow.

Evidence and parties’ submissions

5. Council objects to production of the documents in the Notice to Produce on the grounds of relevance and read the affidavit of Phillip Reginald Gregory Canning sworn 11 December 2024 in support of the motion. Council submitted that the Applicant has not provided any evidence to establish that the documents sought will materially assist its case. Without a legitimate forensic purpose, the Council submitted that the Notice to Produce is a fishing expedition and should be set aside. Council submitted that the Applicant has also not demonstrated, beyond mere speculation, that the documents are likely to assist based on the contentions in the Council’s Amended Statement of Facts and Contentions filed 8 October 2024 (Contentions).

6. Council submitted that the sole contention remaining in these proceedings is that the proposed development will result in the unacceptable loss of affordable rental boarding house accommodation and fails to satisfy the matters for consideration in s 47(2)(a)-(h) of State Environmental Planning Policy (Housing) 2021 (Housing SEPP). Section 47(2) of the Housing SEPP states:

(1) In determining whether to grant development consent, the consent authority must take into account the Guidelines for the Retention of Existing Affordable Rental Housing, published by the Department in October 2009 and the following-

(a) whether the development will reduce the amount of affordable housing in the area,

(b) whether there is available sufficient comparable accommodation to satisfy the demand for the accommodation,

(c) whether the development is likely to result in adverse social and economic effects on the general community,

(d) whether adequate arrangements have been made to assist the residents who are likely to be displaced to find comparable accommodation,

(e) the extent to which the development will contribute to a cumulative loss of affordable housing in the local government area,

(f) whether the building is structurally sound, including-

(i) the extent to which the building complies with relevant fire safety requirements, and

(ii) the estimated cost of carrying out work necessary to ensure the building is structurally sound and complies with relevant fire safety requirements,

(g) whether the imposition of an affordable housing condition requiring the payment of a monetary contribution would adequately mitigate the reduction of affordable housing resulting from the development,

(h) for a boarding house-the financial viability of the continued use of the boarding house.

7. The Council says the experts engaged by the parties have already conferred and provided their joint reports, and the onus is on the Applicant to demonstrate that the documents requested relate to a Contention that is currently in issue before the Court. The Council submitted that the mandatory considerations in s 47(2) of the Housing SEPP are matters for the Applicant to satisfy and the assessment is carried out based on what is provided by the Applicant.

8. The Applicant contends that the Notice to Produce has a legitimate forensic purpose and presses for the documents sought. It submitted that the Applicant does not need to show that the documents will materially assist its case or prove the documents will be relevant, but rather that the documents are “apparently relevant”. The Applicant says the proper approach to dealing with application such as this, is set out in Secretary of theDepartment of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145 (Secretary). In that case, President Bell, as he then was, sets out the apparent relevance test at [65]:

“It is sufficient, in my view, to justify a subpoena as having been issued for a legitimate forensic purpose if the documents sought are “apparently relevant” or, to use the words of Nicholas J in ICAP at first instance, it can be seen that the documents sought to be produced by way of subpoena will materially assist on an identified issue or there is a reasonable basis beyond speculation that it is likely the documents subpoenaed will so assist. …”

9. Further, what is meant by “apparent” is set out at [68]:

“There is a plain difference between “apparent relevance” and “fishing”, the latter being the metaphor that is frequently deployed in this area of discourse: see, for example, The Commissioner for Railways v Small (1938) 38 SR (NSW) 564 at 575; (1938) 55 WN (NSW) 215. The word “apparent” admits of the possibility that the documents sought by way of subpoena may not ultimately turn out to be relevant. Their apparent relevance, however, should be able to be ascertained by an examination of the description or identification of the document or documents sought in the schedule to the subpoena in light of the issues in the case, as they present themselves on the pleadings, in particulars and/or in affidavits or witness statements if they have been filed or served at the time of the issue of the subpoena.”

10. Finally, the conclusion at [80] states:

“My review of the authorities in relation to the setting aside of subpoenas and/or the refusal to permit access to documents produced leads me to the conclusion that, although a party will generally be able to demonstrate that it had a legitimate forensic purpose in issuing a subpoena where, to quote Simpson J (as her Honour then was, and with whom Spigelman CJ and Studdert J agreed) in Saleam at [11], it can:

“(i)   identify a legitimate forensic purpose for which access is sought; and

(ii)   establish that it is ‘on the cards’ that the documents will materially assist his case”,

at least in civil matters, an inability to demonstrate that it is “on the cards” that the documents sought will materially assist the subpoenaing party’s case will not automatically require either that the subpoena be set aside or that access to the documents produced be refused. It will generally be sufficient and prima facie evidence of a legitimate forensic purpose if the documents sought to be produced on subpoena have an apparent relevance to the issues in the case and or bear upon the cross examination of witnesses expected to be called in the proceedings.”

11. The Applicant submitted that the documents are sought to answer the major contention in the proceedings on affordable housing and test the Council evidence, in particular the social impact evidence. The Applicant submitted that the documents are sought to answer the contention on social and economic impact and cumulative loss, in order to understand the supply of affordable housing in the local government area (LGA) both the current baseline now and in the future. The Applicant says the Council’s social impact evidence puts that there is an undersupply of affordable housing in the short and medium term, therefore there will be an impact in terms of cumulative loss which cannot be addressed by a contribution. It submitted that the documents are sought to understand what is in the pipeline from the Council’s policies, what funds have been committed to boarding houses and when it is expected. The Applicant says the documents will at the very least be relevant to cross examination of the social impact expert.

12. Further, the Applicant submitted that the Council correspondence with the community and Ministers is ordinarily produced by councils and is likely to materially assist on the issue of whether adequate arrangements have been made for residents presently residing at the property. It says that what the residents have been told in relation to the subject development application is relevant at least to cross examination of those residents who give evidence at the hearing.

Consideration

13. It is well known and uncontroversial that r 34.2(1) of the Uniform Civil Procedure Rules 2005 provides “Unless the court orders otherwise, the other party must produce the document or thing in accordance with the notice to produce, without the need for any subpoena for production, if the document or thing is in his or her possession.”

14. I accept that the approach set out by Bell P in Secretary in considering whether to set aside a subpoena, is to be applied to whether to set aside a notice to produce. I accept that if the documents sought have an apparent relevance to the issues in the case (in this Class 1 appeal, the Contentions) or bear upon cross examination of experts or witnesses, then that will generally be considered to demonstrate that the notice has a legitimate forensic purpose. Bell P in Secretary states that apparently relevance is a relatively low threshold: at [71]. Concepts of what is appropriate has changed in favour of fuller disclosure of relevant matters: [58]. Further, the procedural context of proceedings in Class 1-3 of the Court, where proceedings are to be conducted with as little technicality and the Court is not bound by the rules of evidence, arguably favours a more generous approach to the scrutiny documents than in ordinarily civil litigation: at [4] and [59] of Secretary and s 38 of the Land and Environment Court Act 1979.

15. I have considered the Contentions, and the mandatory considerations identified in s 47(2) of the Housing SEPP. Section 47(2) of the Housing SEPP is a mandatory relevant consideration in the proceedings and sets out broad considerations which must be taken into account in determining the subject application.

16. The documents sought fall under two groups – firstly existing and potential future accommodation and secondly arrangements to assist residents to be displaced to find comparable accommodation.

17. Firstly, documents are sought to identify both existing and potential future affordable housing accommodation in the LGA. The Notice to Produce seeks records of the Council’s Affordable and Diverse Housing Fund (Fund) including specifically the addresses of short-term and long-term accommodation and a list of the boarding houses in Council’s boarding house inspection program (paragraph1(b)(iv) and (c)). It also seeks records of the address and description of development including expected date of completion of discounted land provided by Council (paragraph 3) and grants provided by Council (paragraph 4).

18. There is a reasonable basis beyond mere speculation that the documents sought appear to be relevant to the mandatory considerations in s 47(2).In particular, s 47(2) subsections (b) on availability of sufficient comparable accommodation to satisfy demand, (c) on adverse social and economic effects on the community, and (e) on cumulative loss of affordable housing in the LGA. The Applicant argues that to form a view about whether there is cumulative loss which may lead to adverse economic and social impacts is to understand the supply of affordable housing in the area now and in the future. This is, in my view, is a reasonable basis that the documents appear to be relevant to the Contentions. I accept the possibility that the documents may not turn out to be relevant: Secretary at [68]. What documents or evidence is ultimately relevant will of course be determined by the presiding Commissioner, and in the procedural context of these Class 1 proceedings I consider that disclosure should be granted.

19. Secondly, documents are sought to identify arrangements to assist residents to be displaced to find comparable accommodation. The Notice to Produce seeks records including correspondence with the community to support residents through threat of eviction and possible relocations (paragraph 1(a)(i)) and records of the Fund committed to assist current residents of the subject properties relocating (paragraph 1(b)(iii)) and grants provided by Council (paragraph 4). These documents are apparently relevant to the mandatory consideration s 47(2)(d), as to whether adequate arrangements have been made to assist the residents who are likely to be displaced to find comparable accommodation. I consider that this forms a reasonable basis beyond mere speculation that the documents sought appear to be relevant to the Contentions.

20. In light of the broad nature of the s 47(2) considerations and that the documents sought have an apparent relevance to the remaining contention in issue in the proceedings, I am satisfied that the Notice to Produce has legitimate forensic purpose. Further, all documents sought in the Notice to Produce have the potential to bear upon the cross examination of the social impact experts giving evidence on s 47(2) of the Housing SEPP.

21. Accordingly, I refuse the motion to set aside the Notice to Produce and the documents sought should be produce forthwith.

22. The parties made no submissions on costs at the hearing of the motion pursuant to r 3.7 of the Land and Environment Court Rules 2007. Order 2 of the motion sought that the Applicant pay the Council’s costs of the motion. The Council has been unsuccessful on its motion. The Applicant did not seek an order for its costs of the motion. As neither party has set out why an order for costs would be fair and reasonable in the circumstances, costs of the motion are reserved, should a party seek to make an application for costs of the motion.

23. The Court orders that:

1. Leave is granted for the Respondent to amend the Notice of Motion filed 11 December 2024 to refer to the Notice to Produce filed 21 February 2025.

2. The Notice of Motion filed 11 December 2024 (as amended) is refused.

3. The Respondent is directed to produce the documents in the Notice to Produce filed 21 February 2025.

4. Costs are reserved.

D Holm

Senior Deputy Registrar of the Court

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Decision last updated: 11 April 2025